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HUMAN RIGHTS NATURE, CONCEPT, ORIGIN, DEVELOPMENT, IMPORTANCE, CLASSIFICATION (1) (2) (3) (4)
What are Human Rights? Are the Human Rights, “a grant by the State” or they inherent in human beings, discuss the philosophy of nature of Human Rights? Discuss in detail the development and importance of Human Rights and their classification? Explain the concept and development of human rights. State how they are classified? Explain the concept origin and development of human rights. Give an account of their classification?
SYNOPSIS 1. Introduction 2. Meaning of Human Rights 3. Nature and concept of Human Rights a) Philosophical or theoretical approach, b) Pragmatic or utilitarian approach. 4. Classification or Kinds of Human Rights a) The First Generation of Human Rights b) The Human Rights of Second Generation c) The Human Rights of Third Generation 5. Evaluation of concept of Human Rights 6. Conclusion 1.
INTRODUCTION In the classical period, international law was solely concerned with states. It was influenced by the theory of state sovereignty. The view was based on the principle that only states creates rule of international law and as such rules are valid for them alone. Thus, individual has no legal significance from the International Law point of view. The states were only treated as subjects of International Law and individuals were mere objects. But subsequently after World War II, the position of the individual has been completely changed because of the most remarkable developments in contemporary International Law. In addition to the States, individuals are regarded as the real subjects and beneficial is of International Law by virtue of having rights and duties flowing directly from International Law. 2.
MEANING OF HUMAN RIGHTS
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The expression, “Human Rights” is comparatively recent in origin. It has formerly and universally become recognised only after formation of the United Nations in 1945. One of the basic principal objects of the United Nation Charter is, “reaffirm its faith in fundamental Human Rights, in the dignity and worth of human person, in the equal rights of men and women and nations large and small.” The term, “Human Rights” denotes all those rights which are inherent in their nature and without which we cannot live as human beings. The Human Rights being eternal part of the nature of human beings are essential for development of individual personality and human qualities, the intelligence, talent and consciences and to enable them to satisfy the spiritual and other higher demands. Human beings are rational beings. Being they are born as human beings, they possess certain basic and inalienable rights, which are commonly known as human rights. Since these rights belong to them because of their very existence, they become operative with their birth. Human Rights, being the birth right, are, therefore, inherent in all the individuals irrespective of their cast, creed, religion, sex and nationality. Human Rights are those minimal rights which every individual must have against the state or public authorities by virtue of his being a member of human family, irrespective of any other consideration. When Human Rights are guaranteed by a written Constitution, they are called, “fundamental rights” because a written Constitution is a fundamental law of a State. Human rights are not created by any legislature. They assume the position of natural rights. These rights provide suitable conditions for the material and moral uplift of the people. Because of their immense significance to human beings; human rights are also sometimes referred as fundamental rights, basic rights, inherent rights, natural rights and birthright. Human Rights being essential for all-round development of the personality of the individuals in the society, being necessarily protected and being made available to all individuals. As a result, these rights have become established as guaranteed Human Rights. The purposes of securing Human Rights as such, are to provide protection to these rights against the abuses of power committed by the organs of State, to establish institutions for the promotion of living conditions of human beings, for the development of their personality, and at the same time, to provide effective remedial measures for obtaining redress in event of those rights are violated. 3.
NATURE AND CONCEPT OF HUMAN RIGHTS There are two main approaches adopted to explain the nature and meaning of Human Rights a) Philosophical or theoretical approach, b) Pragmatic or utilitarian approach. A)
PHILOSOPHICAL OR THEORETICAL APPROACH There are five main theories of philosophical approach to explain the rights of man. These are i) The Natural Rights Theory; ii) The Legal Right Theory; 2
iii) iv) v) i)
The Historical Theory of Rights; The Social Welfare Theory of Rights; and The Idealistic Theory of Rights. The Natural Rights Theory The growth of the concept of rights of man had been closely associated with the traditional natural law theories. The ancient and medieval theories of natural law were more concerned with the foundations of moral, legal and political duty than with the foundation of right. In the traditional doctrine of natural law, the rights are against other people. These rights are having corresponding duties in the sense that some other person is under duty towards the holder of the right. The traditional doctrine of co-relatively of rights and duties as its major limitation and therefore, not applicable in the modern context of Human Rights, for example, in case of human rights there is no such person or persons with whom the duties may be associated in fact. Human Rights are claimed against State, its representatives and functionaries. According to natural right theories there are three characteristic features of Human Rights (i) Human Rights are said to be recognised, (ii) Human Rights are to be inalienable natural and inherent, (iii) All human beings are said to be essentially equal. ii) The Legal Right Theory Jeremy Bentham is the supporter of this theory. According to this theory, rights are the creation of the States, hence, they are neither absolute nor inherent in the nature of man. These rights such as right to life, liberty or property are artificially created by the law of the land. According to this theory Human Rights are recognised by the States and hence protected by the State. Human Right is therefore a claim which can be enforced at law and State is necessary for its protection. iii) Historical Theory of Right According to this theory rights are the creation of historical process. It is a longstanding custom in the course of time concretise in the specific form of rights. This theory has some important limitations (1) The statement that rights originates from historical process or custom may be true to a limited extent only. Customs of people cannot make everything right, for example, practice of slavery or practice of infanticide was considered lawful at one time, but it cannot be claimed as a right today. (2) To relate origin of right to custom is to stop all social reform, for example, practice of Sati, polygamy, child-marriage, untouchability, etc. had been recognised as valid custom but now they are disapproved and therefore prohibited by law. iv) The Social Welfare Theory This theory is also known as Social Expediency Theory. According to this theory law, custom and natural rights all are conditioned by social expediency. For example, right to freedom of speech is not absolute but it is regulated in accordance with the requirement of social expediency. Bentham and Mill are the supporter of this theory. 3
According to them a large number of economic and social rights having incorporated in the Universal Declaration of Human Rights. v) Idealistic Theory This theory is also known as personality theory. The theory insist on the inner development of man, on the development of his full potentiality. Hence, it treats right of personality as a supreme and absolute right. All other rights such as right to life, liberty and property are derived from fundamental rights. The chief merit of this theory is that it insists upon the right of personality as the only absolute right. B)
PRAGMATIC APPROACH According to this theory the meaning and nature of Human Right is pragmatism. Every right whether it has been perceived as inalienable or otherwise can have validity and effectiveness only through some process or institution. Thus, it cannot be defined without reference to some institutional structure. As a room cannot be defined without reference to the walls, so human rights, cannot be defined without reference to institutional settings. In the Indian context, for instance, fundamental rights are incorporated in Part III of the Constitution of India. Although, the term fundamental right has no where been defined in the Indian Constitution but on careful examination of these several fundamental rights one would conclude that these rights constitute restrictions on the power of State and also require the State to adhere to the guidelines pronounced in the matter by the Supreme Court of India. 4. a) b) c)
CLASSIFICATION OR KINDS OF HUMAN RIGHTS Louis B. Sohn has classified human rights in the following three categories The Human Rights of First Generation; or Civil and Political Rights; The Human Rights of Second Generation; and The Human Rights of Third Generation.
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The First Generation of Human Rights: The International Convenant on Civil and Political Rights. The various rights contained in the Convenant on the Civil and Political Rights are not new rights. These are the rights that had developed in course of a very long period of time since the time of Greek City State and concretised in the form of the Magna Carta; the American Declaration of Independence and the French Declaration of the Rights of Man and of the Citizen. Thus, these rights refloet long established human values and as such are incorporated in the national constitutions of various States. In the International Convenant on Civil and Political Rights, in the European Conventions on Human Rights and in Inter-American and African instruments. Civil rights or liberties are referred to those rights which are related to the protection of the right to life and personal liberty. They are essential for a person so that he may live a dignified life. Such rights include right to life, liberty and security of persons, right to 4
privacy, home and correspondence, right to own property, freedom from torture, inhuman and degrading treatment, freedom of thought, conscience and religion and freedom of movement. Political rights may be referred to those rights which allow a person to participate in the Government of a State. Thus, right to vote, right to be elected at genuine periodic elections, right to take part in the conduct of public affairs, directly or through chosen representatives are instances of political rights. The nature of the civil and political rights may be different but they are inter-related and interwoven, and therefore, it does not appear logical to differentiate them. This reason alone led to the formulation of one covenant covering both- civil and political rights into one Covenant, i.e., International Covenant on Civil and Political Rights. These rights are the rights of the first generation which derive primarily from the seventeenth and eighteenth century reformist theories which are associated with the English, American and French revolutions. b) The Human Rights of Second Generation - The International Covenant on Economic, Social and Cultural Rights: As the main source for the origin of Civil and Political Rights, is considered to be the American and French Revolution, so, economic and social rights are considered to be originated in the Russian Revolution of 1917 and in the Paris Peace Conference of 1919. Economic, social and cultural rights, so called ‘freedom to’ are related to the guarantee of minimum necessities of the life to human beings. In the absence of these rights the existence of human beings is likely to be endangered. Right to adequate food, clothing, housing and adequate standard of living and freedom from hunger, right to work, right to social security, right to physical and mental health and right to education are included in this category of rights. These rights are included in the International Covenant on Economic, Social and Cultural Rights. Economic, social and cultural rights are based fundamentally on the concept of social equality. Realization of these rights, which is generally called the rights of second generation has been somewhat slow in coming. They are clear only as general principles and not as specific rules. However they have begun to come of age. c) The Human Rights of Third Generation - Collective Rights Although the United Nations has recognised the above two sets of rights in two separate Covenants, there is a close relationship between them. It has been rightly realised especially by the developing countries that civil and political rights can have no meaning unless they are accompanied by social, economic and cultural rights. Thus, both the categories of rights are equally important and where civil and political rights do not exist, there cannot be full realisation of economic, social and cultural rights and vice versa. The relationship of the two categories of rights was recognised by the International Human Rights Conference held in 1968 which declared in the final proclamation that Since human rights and fundamental freedoms are indivisible, the full realization of civil and political rights without the enjoyment of economic, social and cultural rights is impossible. 5
The General Assembly in 1977 reiterated that all human rights and fundamental freedoms are indivisible and interdependent and equal attention and urgent consideration should be given to the implementation, promotion and protection of both - civil and political rights and economic, social and cultural rights. The resolution also stated that civil and political rights are the means to the social and economic rights of the people. Louis B. Sohn has argued that, individuals are also members of such units, groups or communities as a “family, religious community, social club, trade union, professional association, racial group, people, nation and State. It is not supervising, therefore, that international law not only recognises inalienable rights of individuals, but also recognises certain collective rights exercised jointly by individuals who are grouped into larger communities, including people and nations. These rights includes a right to self-determination, right to development, right to peace, etc. The right to self-determination is one of the most basic collective rights. By virtue of this right people have right not only to freely determine their political status but also to freely pursue their economic, social and cultural developments. Right to peace is also another most important collective right. The United Nations Commission on Human Rights has asserted in 1976 that, “everyone has the right to live in conditions of international peace and civil security and fully to enjoy economic, social and cultural rights and civil and political rights.” 5.
EVALUATION OF CONCEPT OF HUMAN RIGHTS The roots of the protection of the Rights of man may be traced as far back as in Babylonian Laws, Assyrian law, in the Dharma of the Vedic period in India. Writings of Plato and other Greek and Roman philosophers also depict for the protection of Human Rights though they had a religious foundation. The City State of Greece gave equal freedom of speech, equality before law, rights to vote, rights to be elected to public office, rights to trade and the rights of access to justice to their citizens. Similar Rights were secured to the Romans by the ‘Jus civile’ of the Roman law. The Magna Carta granted by the King John of England to the English baron on June 15, 1215, ensured Feudal Rights and dues and to guarantee that the King would not encroach upon their privileges. The Carta implies that there were laws protecting the Rights of subjects and communities, which the King is, bound to observe and if he fails to do so, be compelled to observe by force. Thus, the Carta set forth the principle that the power of the King was not absolute. In 1216-1217, during the reign of John’s son, Henry-III, the Magna Carta was confirmed by Parliament, and in 1297 Edward-I confirmed it in a modified form. The Magna Carta was supported in 1628 by the Petition of Rights. In 1689, by the Bill of Rights, to form the platform for parliamentary superiority over the Crown and to give documentary authority for the rule of laws in England. In addition to the above, the writings of St. Thomas Acquinas and Grotious also reflected the view that human beings are endowed with certain eternal and inalienable rights. 6
The expression fundamental rights of man find in the declarations and constitutional instruments of many States. For instance, the Declaration of Independence of the Thirteen United States of America in 1776, the Virginia Bill in 1789, 1865, 1869 and 1919 included rights of man. The French Declaration of the Rights of Man of 1789 led other European Countries to include the provisions in their laws for the protection of Human Rights. Since the beginning of the nineteenth century it was recognised by most of the states that human beings possess certain Rights. Worth of the human personality began to be realized. 6.
CONCLUSION The term Human Right denotes all those rights which are inherent in their nature and without which we cannot live as human beings. The Human Rights being eternal part of the nature of human beings are essential for development of individual personality and human qualities, the intelligence, talent and consciences and to enable them to satisfy the spiritual and other higher demands. Philosophical and pragmatic are the two main approaches adopted to explain the nature and meaning of Human rights. The Human rights are classified in three categories which includes human rights incorporated in the International Covenant on Civil and Political Rights, 1966, the International Covenant on Economic, Social and Cultural Rights, 1966 and Collective Rights, 1966. The expression fundamental rights of man find in the declarations and constitutional instruments of many States.
HUMAN RIGHTS UNDER THE UN CHARTER
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UNIVERSAL DECLARATION OF HUMAN RIGHTS
Write short note on Human Rights and Fundamental Rights? Discuss the provisions of Universal Declaration of Human Rights.
SYNOPSIS 1. Introduction 2. Commission on Human Rights 3. Universal Declaration of Human Rights, 1948 a) Preamble b) Civil and Political Rights c) Economic and Social Rights 4. Legal Effects of the Declaration 5. India and the Universal Declaration 6. Conclusion 1.
INTRODUCTION The preamble of the UN Charter re-affirmed: “faith in fundamental Human Rights, in the dignity and worth of the human person, in the equal Rights of men and women and of nations large and small.” The purpose of the United Nations are listed in Art. 1 Para 3 of the Charter, which reads as under7
“To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.” The promotion and encouragement for Human Rights is an undertaking to be carried out, for all. Human Rights are thus universal and all-inclusive. The provisions in the Charter also place emphasis on equality or non-discrimination, which is closely linked with the concept of universality. Indeed they mutually reinforce each other. Art. 55 of the UN Charter provides: With a view to creation of conditions of stability and well being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote universal respect for, and observance of, Human Rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Art. 62 of the Charter authorises the Economic and Social Council, to make recommendations for the purposes of promoting respect for, and observance of human rights and fundamental freedoms. Art. 68 direct the Economic and Social Council to establish Commissions in economic and social fields and for the promotion of human rights and such other commissions as may be required for the performance of its functions. 2.
COMMISSION OF HUMAN RIGHTS General Assembly of United Nations Organisation on 12thFebruary, 1946 approved Commission on Human Rights, appointed by the Economic and Social Council. The Commission was composed of 18 members who were appointed by ECOSOC i.e. Economic and Social Council. Each State member selected its own representative. In 1962, the membership was increased to 21, then in 1966 to 32 and presently the Commission has 53-members. The Commission was directed to prepare recommendations and report on the following items: a) On International Bill of Rights; b) International Declaration on Conventions on Civil Liberties; Status of women, Freedom of information, and similar matters; c) The promotion of minorities; d) The prevention of discrimination on the ground of race, sex, language, or religion. The Commission was empowered to carry out studies, make recommendations and drafts new International treaties. The Commission began its work in January 1947 under the Chairmanship of Mrs. Franklene D. Roosvelt. The Drafting Committee, at its First Session, prepared a preliminary draft of an International Bill of Human Rights, which was considered by the Commission on Human Rights at its Second Session held from December 2, to 17, 1947. The Commission discussed the report of the Drafting Committee finally in Third Session held in June 1948 and finally adopted a Draft of Declaration for submission to the Economic and Social Council. The Council adopted a Resolution and submitted it before the General Assembly. The General Assembly 8
adopted it on 10th December 1948, through a Resolution known as “Universal Declaration of Human Rights” (UDHR). The Resolution was adopted without dissent by 48 votes with 8 States abstaining. The declaration consisted 30 Art. s to besides the Preamble. 3. a)
UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 Preamble The preamble proclaims the Universal Declaration of Human Rights as a common standard of achievement for all peoples and for all nations, to the end that every individual and every organ of society, keeping this in mind to promote respect for these Rights and freedoms and by progressive measures, and observance, both among the peoples of territories and their jurisdiction. Thus the General Assembly recommends to every individual and every organ of the society to do some thing with respect to Human Rights laid down in the declaration. Enumeration of Rights in the Declaration The Universal Declaration enumerated the basic postulates and principles of Human Rights in a most comprehensive manner. It dealt not only with Civil and Political rights, but with Social and Economic Rights as well. b) Civil and Political Rights Art. 2 to 21 deals with those Civil and Political Rights, which have been generally recognised throughout the world. These are as follows: 1. Right to life, liberty and security of persons (Art. 3). 2. Freedom from slavery or servitude (Art. 4). 3. Prohibition against torture, inhuman or degrading treatment or punishment (Art. 5). 4. Recognition as a person before the law (Art. 6). 5. Equality before the law and equal protection of the law without any discrimination Art. 7). 6. Effective remedy before the national tribunals (Art. 8). 7. Freedom from arbitrary arrest, detention or exile (Art. 9). 8. Right to a fair and public hearing by an independent and impartial tribunal (Art. 10). 9. Presumption of innocence until proved guilty in a public trial with all guarantees necessary for defence in criminal cases (Art. 11, Para 1). 10. Freedom from ex-post-facto laws (Art. 11, Para 2). 11. Right to privacy, family, home and correspondence (Art. 12) 12. Right to freedom of movement and residence within the borders of a State (Art. 13, Para 1) 13. Right of leave any country, including his own and to return to his country (Art. 13, Para 2) 14. Right to seek and to enjoy in other countries asylum from prosecution (Art. 14, Para 1) 15. Right to a nationality (Art. 15) 16. Right to marry and to found a family (Art. 16) 9
17. 18. 19. 20. 21. c)
Right to own property (Art. 17) Right to freedom of thought, conscience and religion (Art. 18) Right to freedom of opinion and expression (Art. 19) Right to freedom of peaceful assembly and association (Art. 20) Right to participate in the government of his country (Art. 21) Economic and Social Rights Art. 22 to 27 of the Declaration deal with Economic and Social Rights, which are as follows: 1. Right to Social security (Art. 22). 2. Right to work and free choice of employment (Art. 23) 3. Right to rest and leisure (Art. 24) 4. Right to a standard of living adequate for the health of himself and of his family (Art. 25) 5. Right to education (Art. 26) 6. Right to participate in Cultural life (Art. 27) 7. Right to good Social and international order (Art. 28) The Declaration laid down under Art. 29 certain limitations to these Rights and freedoms. It provides that every one has duties to the community in which alone the final and full development of his personality is possible. Para 2 of Art. 29 provided that the Rights shall be provided to the individuals subject to just requirements of morality, public order and the general welfare in a democratic society. The above may, means that Rights provided in the declaration are not absolute. 4.
LEGAL EFFECT OF THE DECLARATION The Declaration set for the international community a common standard of achievement. It recognised the inherent dignity and the equal and inalienable rights of all people in all nations. The Human Rights mentioned in the Declaration are universal, indivisible, interdependent and interrelated. It is the duty of the States regardless of its social, political and economic systems to promote and protect human rights. The Declaration was not intended to be legally binding and therefore it did not impose any legal obligations on the States to give effect to its provisions. In other words, from the legal point of view, the Declaration was only a recommendation; it was not strictly binding on the States. However, it has legal value in as much as it contains an authoritative interpretation of the provisions of the Charter. The General Assembly proclaimed the Declaration as “a common standard of achievement for all peoples and all nations” and called upon all member States and all peoples to promote and secure the effective recognition and observance of the rights and freedoms set forth therein. The freedoms in order to inspire everybody to work for their progressive realisation. The Assembly has declared that the Charter precepts embodied in the Declaration constitutes basic principles of International Law. 5.
INDIA AND THE UNIVERSAL DECLARATION 10
India was a signatory to the Declaration. The Indian Constitution, which came into force from January 26, 1950, was greatly influenced by the Declaration. A number of fundamental rights guaranteed to individuals in Part III of the Indian Constitution are similar to the provisions of the Declarations are clear from the following chart: Constitution Art. - 7 Art. - 7(2) Art. - 21(2) Art. – 19 Art. - 20(1) Art. - 23(4) Art. - 13(1)
Universal Declaration
Indian
Equality before the law and equal protection of the law Equality before the law and equal protection of the law without any discrimination Right to participate in the government of his country Right to freedom of opinion and expression Right to freedom of peaceful assembly and association Right to work and free choice of employment Right to freedom of movement and residence within the borders of a State
Art. -14 Art. - 15(1) Art. - 16(1) Art. - 19(1)(a) Art. - 19(1)(b) Art. - 19(1)(c) Art. - 19(1)(d)
Art. - 17(2) Right to own property Art. - 19(1)(f) Art. - 11(2) Freedom from ex-post-facto laws Art. - 20(1) Art. – 9 Freedom from arbitrary arrest, detention or exile Art. - 21 Art. – 4 Freedom from slavery or servitude Art. - 23 Art. – 18 Right to freedom of thought, conscience and religion Art. - 25(1) Art. – 22 Right to Social security Art. - 29(1) Art. - 26(3) Right to education Art. - 30(1) Art. - 17(2) Right to own property Art. - 31 Art. – 8 Effective remedy before the national tribunals Art. - 32 The above chart shows that the Universal Declaration which was adopted just before the Indian Constitution widely held to have provided the model for the latter’s Human Rights guarantees. The founders of the Constitution, it appears were consciences about the contents of the Declaration and therefore, they gave due recognition to its provisions. In Keshwanand Bharati v/s. State of Kerala the Supreme Court observed that the Universal Declaration of Human Rights may not be a legally binding instrument but it shows how India understood the nature of human rights at the time Constitution was adopted. Thus, although the Supreme Court has stated that the declaration cannot create a binding set of rules and that even international treaties may at best inform judicial institutions and inspire legislative action, constitutional interpretation in India has been strongly influenced by the declaration. Further, the declaration has been frequently referred to the decisions of the Supreme Court and the High Courts. 6.
CONCLUSION The draft of declaration sent by Economic and Social Council was adopted on 10th December, 1948 by General Assembly through resolution known as, ‘’Universal 11
Declaration of Human Rights’’ (UDHR). This declaration dealt with not only Civil and Political right, but also Social and Economic Rights as well. The Declaration set for the international community a common standard of achievement. It recognised the inherent dignity and the equal and inalienable rights of all people in all nations. The Human Rights mentioned in the Declaration are universal, indivisible, interdependent and interrelated. It is the duty of the States regardless of its social, political and economic systems to promote and protect human rights.
COVENANT ON CIVIL AND POLITICAL RIGHTS
Qtn. What are the human rights of women under the international instruments? SYNOPSIS 1. Introduction 2. Human Rights of women a. Universal Declaration of Human Rights b. International Covenant on Civil and Political Rights and International Covenant on Economic, Social, and Cultural Rights. c. Elimination of All form of Discrimination against women d. Human Rights of women in India 3. Conclusion 1.
INTRODUCTION The Preamble of the Charter of the United Nations provides for ‘to reaffirm’ faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women. There are number of provisions in the Charter of United Nations and other Human Rights instruments which provide for the protection and advancement of the rights of women. Art. 1 of the Charter lays down that one of the purposes of the United Nations is ‘to achieve international co-operation in solving international problems of an economic, social and cultural or humanitarian character, and in promoting and encouraging respects for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.’ Art. 8 of the Charter lays down that ‘the United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs’. Art. 55 of the Charter also lays emphasis upon the promotion of universal respect for, an observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion. Thus the principle of equality of men and women in the matter of promotion and observance of human rights and fundamental freedoms has been fully established under the Charter of United Nations.
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HUMAN RIGHTS OF WOMEN Universal Declaration of Human Rights Art. 1 of this Declaration lays down that ‘all human beings are born free and equal in dignity and rights. Art. 2 provides that ‘everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind including sex. It clearly provides that all the rights and fundamental freedoms incorporated in the Universal Declaration of Human Rights are available equally to both men and women without any distinction. b) International Covenant on Civil and Political Rights and International Covenant on Economic, Social, and Cultural Rights. This basic principle has been incorporated in both the International Covenant i.e. the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The following International Human Rights instruments also incorporates the principle of equal rights of men and women – (i) The Convention on the Elimination of All Forms of Discrimination against Women; (ii) The Convention on the Political Rights of Women; (iii) The Convention on the Nationality of Married Women; (iv) The Convention and recommendation on Consent to Marriage, Minimum age for Marriage and Registration of Marriage; (v) The Supplementary Convention on the Abolition of Slavery, the Slave Trade, the Institution and Practices Similar to Slavery; (vi) The Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others; (vii) The Human Rights instruments adopted by the International Labour Conference; (a) The Underground World (Women) Convention, 1935; (b) The Night Work (Women) Convention (Revised), 1948; (c) The Equal Remuneration Convention, 1951; (d) The Discrimination (Employment and Occupation) Convention, 1958, and (e) The Workers with Family Responsibilities Convention, 1981. (viii) The Convention against Discrimination in Education, adopted by the General Conference of the United Nations Educational Scientific and Cultural Organisation in 1960. c) Elimination of All form of Discrimination against women For the promotion of status of women in various field and to eliminate discrimination against women, following two organs have been established under the United Nations system – (1) Commission on the Status of the Women; (2) Committee on the Elimination of Discrimination against Women. The most important convention on the Elimination of All Forms of Discrimination against Women was adopted by the General Assembly on December 18, 1979. The convention came into force in 1981. The Convention condemned discrimination against 13
women in all its forms and agreed to pursue by all appropriate means to eliminate discrimination against women and, to this end they undertook : (a) to embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein; (b) to adopt appropriate legislative and other measures prohibiting all discrimination against women; (c) to establish legal protection of the rights of women on an equal basis with men; (d) to refrain from engaging in any act or practice of discrimination against women; (e) to take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise. Art. 9 of the Convention on the Elimination of All Forms of Discrimination against Women recognised following rights to the women – (i) To participate in the elaboration and implementation of development planning at all levels; (ii) To have access to adequate health care facilities, including information, counseling and services in family planning; (iii) To benefit directly from social security programmes; (iv) To obtain all types of training and education, formal and non-formal, including that relating to functional literacy, as well as, the benefit of all community and extension services, in order to increase their technical proficiency; (v) To organise self-help groups and cooperatives in order to obtain equal access to economic opportunities through employment or self employment; (vi) To participate in all community acitivities; (vii) To have access to agricultural credit and loans, marketing facilities, appropriate technology and equal treatment in land and agrarian reform as well as in land resettlement schemes; and (viii) To enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications. On the recommendation of the Commission on the Status of Women, the Economic and Social Council has initiated a reporting system on the implementation of the declaration. All the member States, the specialized agencies and the non-Governmental organisations are requested to give void publicity to the principles contained in the declaration and send report to the Secretary General regarding the actions taken by them for the implementation of those principles. The Secretary General, in turn, is required to send his report on the information so received to the Commission on the status of women for its consideration. International Women’s Year 1975 The General Assembly adopted two resolution on 18th December 1972 – (a) that all the Member States and all international organisations should take steps to ensure full realization of the rights of women and their advancement on the basis of Declaration on the Elimination of Discrimination against Women, and (b) to observe 1975 as International Women’s Year. World Conference of the International Women’s Year 14
It was held at Mexico City and conference adopted various resolution for the promotion and protection of rights of women. United Nations Development Fund for Women The United Nations Development Fund for Women was established on 1 st July 1985 and it is recommended that Governments, International Organization, National Committees shall contribute to it and the fund is to be utilised for the identification and study of emerging issues relating to women such as violence against the women and assistance to refugee women. International Research and Training Institute for the Advancement of Women – This institute has been established as an autonomous body under the auspicious of United Nations and funded by voluntary contributions. This institution is to carry its activities with special attention to need of women by developing countries and their integration in the development process. Number of the World Conferences of the United Nations for Women was held since 1976 to 2000 in the year 2000 a special session of the General Assembly on Women was held in New York to assess the progress which nations have made in implementation of their commitment to gender equality. Women representatives of 180 nations and hundreds of non-governmental organizations and many women group have participated in the deliberations. The final document emerged out of the conference lays emphasis upon – (1) measures to increase women’s participation in political parties and parliaments; (2) Measures for women’s health and violence against them; (3) Women’s right to inheritance, their right to property and right to housing. Thus concrete proposals have been incorporated in the document for the improvement of women’s health and general conditions of life. d. Human Rights of women in India In order to rectify the unequal position of women & to give meaning & content for their rights, many laws were enacted, some before the adoption of the Constitution and more thereafter. Based on their nature, they can be broadly categorised as Constitutional Law. Labour Laws, Criminal Laws, Family Laws and other Civil Laws. Some of these laws are listed below Constitution of India Art. 14 of the Constitution provides that ‘the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’ Simply it proclaims equality of all persons. Art. 15(1) prohibits ‘the State shall not discriminated against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.’ Simply it states that there can be no discrimination between citizens on the ground of religion, race, caste, sex, place of birth or any of them. This right is available to the citizens against the state only. Art. 15 (3) proclaims ‘Nothing in this Art. shall prevent the State from making any especial provision for women and children. 15
Simply Art. 15(3) provides for the State to make special provision in relation to women and children. Based on that well accepted logical special provisions are made to guard the interest of women and children, in several laws, both civil and criminal. Art. 16(1) and Art. 16(2) prohibits discrimination in general and also discrimination because of sex in offices and those employed under the State. Art. 39(a) of the Constitution provides that the State shall in particular direct its policy towards securing that citizens, men and women equally, have the rights to an adequate means of livelihood. This is also a directive principle of State policy. Art. 39(c) of the Constitution requires that the State secure health and strength of workers, men and women and that children are not abused and citizens are not forced by economic necessity to enter avocations unsuited to their age and strength. This again is a directive principle of State policy. Art. 51(A) (e) of the Constitution provides that it will be the duty of every citizen of India to renounce practices derogatory to the dignity of women. 3.
CONCLUSION The Human Rights of the women have been recognized under the various International instruments and under Municipal laws. There shall not be any discrimination on the ground of sex therefore, for the promotion of the status of women in various field and to eliminate discrimination against women Commission on the Status of women and Committee on the elimination of discrimination against women are established. The Economic and Social Council on the recognition of these Commission and Committees has initiated a reporting system on implementation of various covenant protecting Human Right of Women.
RIGHT OF DISABLED AND CHILDREN Qtn. What are the human rights of the disabled Persons.? How do
international instrument recognise their rights?
A) DISABLED PERSON SYNOPSIS 1. Introduction 2. Disabled Person a) The Declaration on the Rights of Mentally Retarded Persons b) The Declaration on the rights of Disabled Person 3. International year of Disabled person 4. United Nations Decade of Disabled Persons 5. Conclusion 1.
INTRODUCTION 16
The disabled person needs more protection to prevent them from exploitation, abuse and degrading treatment. Various provisions are incorporated for assisting disabled persons to develop their abilities and promoting their integration in normal life. The General Assembly passed various resolutions to help them in the physical and psychological adjustment to society and to promote all national and international efforts to provide disabled persons with proper assistance, training, care and guidance and promoting effective measures for the prevention of disability for rehabilitation of disabled person. 2.
DISABLED PERSON For the improvement of conditions of disabled person the General Assembly, has adopted following two declarations– a) The Declaration on the Rights of Mentally Retarded Persons, 1971 b) The Declaration on the Rights of Disabled Persons, 1975 a) The Declaration on the Rights of Mentally Retarded Persons, 1971 – General Assembly has adopted this declaration to provide help to mentally retarded persons in order to enable them to develop their abilities and promoting their integration in a normal life. The Declaration provides a framework within which national and international actions should be initiated for the advancement of the rights set forth in the Declaration. The Declaration lays down some of the following principles – i) The mentally retarded person has the same right as other human rights; ii) The mentally retarded person has a right to proper medical care and physical therapy to develop his ability and maximum potential; iii) The mentally retarded person has a right to economic security and to a decent standard of living; iv) The mentally retarded person should lie with his own family and to participate in different firms of community life; v) The mentally retarded person has a right to qualified guardian to protect his personal well-beings and interests; vi) The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment; b) The Declaration on the Rights of Disabled Persons, 1975 – This Declaration was adopted by the General Assembly keeping in view the necessity of preventing physical and mental disabilities and of assisting disabled persons to develop their abilities and promoting their integration in normal life. The Declaration lays down some of the following principles– i) The disabled person shall enjoy all the rights contained in this Declaration without distinction or discrimination on the basis of race, colour, sex, language, religion, state of health, birth, etc.; ii) The disabled person have inherent rights to respect for their human dignity, to enjoy a decent life; iii) Disabled persons have the same civil and political rights as other human beings; 17
iv)
Disabled persons are entitled to the measures designated to enable them to become as self-reliant as possible; v) Disabled persons have the right to medical, psychological and functional treatment; vi) Disabled persons have the right to economic and social security; vii) Disabled persons have a right to live with their family and to participate in all social, creative or recreational activities; viii) Disabled persons shall be protected against all exploitation and treatment of a discriminatory, abusive or degrading nature. ix) Disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and property. 3.
INTERNATIONAL YEAR OF DISABLED PERSON, 1981 – The General Assembly on 16 December 1978, decided to observe the Year 1981 as International Year for Disabled Persons to help them in the physical and psychological adjustments to society and to promote all national and international efforts to provide disabled persons with proper assistance, training, care and guidance and promoting effective measures for the prevention of disability for rehabilitation of disabled person. 4.
UNITED NATIONS DECADE OF DISABLED PERSONS – The General Assembly in its Resolution of 3 December 1982, decided to observe the period 1983-1992 as United Nations Decade of Disabled Persons. The General Assembly requested the Member-States to utilise this period for implementing the World Programme of Action for Disabled Persons. The General Assembly also established a Trust Fund for the International Year of disabled person. This Trust Fund was renamed as the Voluntary Fund for the United Nations Decade for Disabled Persons. The General Assembly have acknowledged that 500 million persons are suffering disability of one form or other out of whom 400 million persons belonging to developing countries. 5.
CONCLUSION Disabled person comes in the group of vulnerable class who needs more protection of law to avoid their exploitation. Therefore, the international convention and declaration on the Rights of Disabled Person, 1975 provides various Civil and Political Rights. It also provides Economic, Social and Cultural Rights to develop their abilities and promoting their integration in normal life.
B) RIGHT OF CHILD Qtn. What are the human rights of Children? How do international instrument recognise their rights? SYNOPSIS 1. Right of Child 2. United Nations Children’s Fund 18
3. International year of Child 1979 4. The Convention on the Right of the Child 5. Rights to family development is the most important right under this Convention given to the child 6. World summit for Children 7. World declaration on the Survival, Protection and Development of Children 1990 8. Rights of Child in India 1.
RIGHT OF CHILD The League of Nations by the Geneva Declaration of 1924 made attempt to enforce right of child in 1946 by the temporary Social Commission of the Economic and Social Council. Geneva Convention of 1924 consisted of five points in respect of the right of the child on the basis of which General Assembly adopted a Declaration in 1959. This Declaration on the Right of Child contains ten points. Some of the rights are that (a) every child enjoy all rights without distinction on account of race, colour, sex, language, religion, political or other opinion, etc.; (b) The child shall enjoy special protection and shall be given opportunities and facilities by law and other means to enable him to develop in all fields; (c) Every child shall be entitled from his birth to a name and nationality; (d) Child shall enjoy the benefits of social security; (e) The child who is physically, mentally and socially handicapped shall be given the special treatment, education and care required by the particular condition; (f) The child is entitled to receive education; (g) Child shall be given first preference to receive protection and relief, etc. 2.
UNITED NATIONS CHILDREN’S FUND – (UNICEF) The General Assembly established the United Nations International Children’s Emergency Fund in 1946. The purpose of this fund was to provide assistance to the children. The Economic and Social Council supervise and review the work of UNICEF periodically. The main function of UNICEF is to provide assistance to the Government of developing countries in improving the life of children. 3.
INTERNATIONAL YEAR OF CHILD, 1979 The General Assembly decided to observe the Year 1979 as International Year of Child for the improvement of the lives of the children. The main objective was to provide a framework and to promote recognition to the children’s right. 4.
THE CONVENTION ON THE RIGHTS OF THE CHILD General Assembly on 20 November 1989 adopted United Nation Convention on the Rights of Child and it came into force on 2nd September 1990. This Convention consist of 54 articles that deals with rights of a child, their implementations, etc. Art. 1 of the 19
Convention defines the term ‘child’ according to it a child means every human being below the age of 18 years. This Convention gives following rights to the child civil rights and liberties of a child which includes – (i) Every child has the inherent right to life and shall be ensured to the maximum extent possible the survival and development; (ii) Right to name and nationality – Every child shall have a right to be registered immediately after birth, the right to a name and nationality and the right to know and be cared for by his or her parents; (iii) Right to identity. Every child has right to preserve his or her identity, nationality, name and family relations; (iv) The Right to freedom of expression. Every child has right to freedom of expression which includes freedom to seek, receive and impart information and ideas of all kinds; (v) Every child has right to freedom of thought, conscience and religion; (vi) Every child has right to freedom of association and a freedom of peaceful assembly; (vii) The Right to privacy. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, or to unlawful attacks on his or her honour and reputation; (viii) Children of ethnic, religious or linguistic minorities or of indigenous populations shall have right to enjoy their own culture and to practice their own religion and language; (ix) No child be subjected to torture or other cruel, inhuman or degrading treatment or punishment including capital punishment or life imprisonment without possibility of release. 5.
RIGHTS TO FAMILY DEVELOPMENT IS THE MOST IMPORTANT RIGHT UNDER THIS CONVENTION GIVEN TO THE CHILD. It includes a right to child not to be separated from his or her parents; a child is entitled to family environment and protection from all forms of violence, prevention of illicit transfer etc. The Convention also provides the following rights – (i) Educational right of child; (ii) The right to special protection in emergency; (iii) The right of child in relation to administration of justice; (iv) The right against exploitation; (v) The Right to protection against drug abuse; This Convention has widened the perspective of the rights of the child and also for effective implementation of those rights contained therein. The Convention lay down certain measures such as the obligation of the State Parties to respect and ensure the rights set forth in the present convention to each child within their jurisdiction, their obligation to provide information to both adults and children regarding the rights of the child and their obligation to publish their reports on the recommendation of rights of the child. 20
6.
WORLD SUMMIT FOR CHILDREN The World Summit for Children was convened at United Nations Headquarters, New York on 30 September 1990. It was convened at the initiative of Canada, Ehypt, Mali, Mexico, Pakistan and Swedene. 7. WORLD DECLARATION ON THE SURVIVAL, PROTECTION AND DEVELOPMENT OF CHILDREN 1990 The Declaration provides that children are entitled to joy and peace, playing, learning and growing which are necessary for the harmonious development of children. But there are many children who face various problems and suffer in their very childhood. The Declaration lays down 10-point programme for the protection of the rights of children and improvement in their lives. 8.
RIGHT OF CHILD IN INDIA Constitutional provisions The Constitution of India guarantees certain Fundamental Rights to all Indian citizens including children. A Comparative study of the Universal Declaration of Human Rights, the Un Convention on the Rights of the Child and part III and IV of the Indian Constitution would show that the rights envisaged in the International Instruments are more or less provided for adequately in the International Instruments are more or less provided for adequately in the Constitution. Briefly, the rights guaranteed under the Constitution are: I. Right to equality: Art. 14Equality before law; Art. 15Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; Art. 15(3) State can make separate laws for Women and Children. Art.16Equality of opportunity in matters of public employment; Art. 17Abolition of untouchability; Art. 18Abolition of titles. II. Right to Freedom: Art. 19Protection of certain rights regarding freedom of speech etc; Art. 20Protection in respect of conviction for offences; Art. 21Protection of life and personal liberty; Art. 22Protection against detention in certain cases. III. Right Against Exploitation: Art. 23Prohibition of traffic in human beings and forced labour; Art. 24Prohibition of employment of children in factories, etc. IV. Right to Freedom of Religious: Art. 25Freedom of conscience and free profession, practice and propagation of religion; Art. 26Freedom to manage religious affairs; Art. 27Freedom as to payment of taxes for promotion of any particular religion. 21
Art. 28-
Freedom as to attendance at religious instruction or religious worship in certain educational institutions. V. Cultural and Educational Rights: Art. 29Protection of interest of minorities. Art. 30Rights of minorities to establish and administer educational institutions. Directive Principle Art.39 (e), Certain Directive Principle of State Policy to be followed by the State: The State shall in particular erect its policy towards securing - that the health and strength of workers, men and women, and the tender age of children are not abuse and that citizen are not forced by economic necessity to enter avocation (employment), unsuited to their age or strength. Art.39 (f) (42nd Constitutional Amendment, 1976 with effect from 3-1-77) The State shall in particular, direct its policy towards securing that children are given opportunities and facilities to develop in healthy manner and in condition of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment (removal). Art.45 Provisions for free and compulsory education for children: The State shall endeavour to provide, within a period of 10 years from commencement of this Constitution, for free and compulsory education for all children until they complete the age of 14 years.
C) RIGHT OF OLDER PERSONS
The United Nations is concerned not only with the quality of the life of human beings, but it is also equally concerned with the longevity of the human beings. As a result of the gradual decline in death rates and rising life expectancy, it is expected that all countries of the world during the next two decades will witness an increase in the proportion of their population aged 60 or over. By the year 2020 more than 1000 million people aged 60 years and above will be living in the World. The United Nations is committed to help those countries, which are facing the challenge for the needs of elderly persons and using effectively their contribution to development. The question of ageing was first debated at the United Nations in 1948 at the initiative of Argentina. The issue was again raised by Malta in 1969. In 1971 the General Assembly asked the Secretary-General to prepare a comprehensive report on the elderly and to suggest guidelines for national and international action. In 1978, Assembly decided to hold a World Conference on the Ageing. Accordingly, the World Assembly on Ageing was held in Vienna from July 26 to August 6, 1982 wherein an International Plan of Action on Ageing was adopted. The overall goal of the Plan was to strengthen the ability of individual countries to deal effectively wit the ageing in their population, keeping in mind the special concerns and needs of the elderly. The plan attempted to promote understanding of the social, economic and cultural implications of ageing and of related humanitarian and developed issues. The Plan made 62 recommendations for action in many areas including health and nutrition, protection of elderly consumers, housing and environment, family, social welfare, income security an employment and 22
education. The Assembly in subsequent years called on governments to continue to implement its principles and recommendations. The Assembly urged the SecretaryGeneral to continue his efforts to ensure that follow-up action to the Plan is carried out effectively. In 1990, the General Assembly designed October 1 as the International Day for the Elderly, later renamed the International Day for Older Persons. Principles for Older Persons: The General Assembly on December 16, 1991 by a resolution adopted a set of 18 Principles for Older Persons. These principles were related to the independence, participation, care, self-fulfillment and the dignity of the older persons. Some of the Principles are as follows: (a) Older Persons should have the opportunity to work and determine when to leave the work place. (b) Older Persons should remain integrated in society and participate actively in the formulation of policies, which effect their well-being. (c) Older Persons should have access to health care to help them maintain the optimum level of physical, mental an emotional well-being. (d) Older Persons should be able to pursue opportunities for the full development of their potential and have access to educational, cultural, spiritual and recreational resources of society. (e) Older Persons should be able to live in dignity and security and should be free from exploitation and mental and physical abuse. Governments were encouraged to incorporate the principles into their national programmes. The Assembly on October 15 and 16, 1992 convened a Special International Conference to mark the tenth anniversary of the adoption of the 1982 International Plan of Action on Ageing. Later, the General Assembly on November 11, 1992 adopted a Proclamation on Ageing by which it decided to observe 1999 as the International year of Older Persons. The Proclamation calls for international co-operation to be promoted for life-long health, income generation and new forms of productive ageing. It urges national initiative to view older persons as contributors to their societies and not as burden; engage the entire population in preparing for the later stages of life; and help and young generations to co-operate in creating a balance between tradition and innovation in economic, social and cultural development. Second World Assembly on Ageing The Second World Assembly on Ageing was held in Madrid in April 2002. It adopted the International Plan of Action and a Political Declaration which stressed the crucial importance of incorporating ageing issues into all development plans. In the plan of action three priorities were laid down for older persons, i.e., older persons and development, advancing health and well-being into old age and enabling the supportive environments. 23
The first priority-older persons and development focused on eight issues which included for urgent action to ensure the continuing integration and empowerment of older person, thus, enabling them to participate actively in society, development and the labour force. Governments should focus on involving older persons decision-making, creating employment opportunities for those who wish to work and improving living conditions and infrastructure in rural areas. They should also alleviate poverty in rural areas, integrate older migrants within new communities and create equal opportunities for education and training. Under the second priority advancing health and well-being into old agegovernments should reduce the effects of factors increasing disease and dependence in older age, develop policies to prevent ill health and provide access to food and adequate nutrition. The needs and perceptions of older persons should be integrated into the shaping of health policy. The third priority-ensuring enabling and supportive environments urged recommendations for improving housing and living environments of older persons, promoting a positive view of ageing and enhancing public awareness of the important contributions of older persons. It also stated the availability of accessible and affordable transport for older persons, providing a continuum of care and services for older persons and supporting the care-giving role of older persons. The final section of the Plan of Action stated national and international measures aimed at adequate implementation and follow-up. It noted that a vital first step towards implementation would be to mainstream ageing and the concerns of older persons into national development frameworks and poverty eradication strategies.
THE RIGHTS OF MINORITIES
Qtn. What are the Human Rights of triable and minorities? How International Instruments recognize their rights? SYNOPSIS 1. The Rights of Minorities 2. Provisions for minorities in Indian Constitution a) Protection of interest of minorities b) Rights of minorities to established and administer educational 1.
THE RIGHTS OF MINORITIES The Rights of Minorities : National, Ethnic, Religious or Linguistic – Inspired by the provisions of Art. 27 of the International Covenant on religious or linguistic minorities, the General Assembly on December 18, 1992 adopted the Declaration on the Rights of Persons belonging to National or Ethnic, Religious or Linguistic Minorities. The Declaration proclaimed that promoting and protecting the Rights of such minorities contribute to the Political and Social stability of States in which they live. The declaration consisting of nine Arts stated the following Rights to such persons. 24
a)
The existence and the national or ethnic, Cultural, religious and linguistic identity of minorities are to be protected within their respecting territories by laws and other measures (Art. I). b) Persons belonging to minorities have the Rights to enjoy their own culture to profess and practice their own religion and use their own language. (Art. 2) c) Minorities may exercise their Rights individually as well as in community with other members of their group without any discrimination (Art. 3) d) States should provide adequate opportunities for persons belonging to minorities to learn their mother tongue and to participate fully in the Economic progress and development in their country (Art. 4). States are required to co-operate on questions relating to persons belonging to minorities, inter alia, exchanging information and experiences, in order to promote mutual understanding, and confidence. Measures taken by States to ensure the effective enjoyment of the Rights shall not prima facie by considered contrary to the principle of equality contained in the Universal Declaration of Human Rights. The World Conference on Human Rights held in Vienna in 1993 urged all States and the international community to promote and protect Rights of persons belonging to national or ethnic, religious and linguistic minorities in accordance with the Declaration on the Rights of Persons belonging to National accordance with the Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities. 2. a)
PROVISIONS FOR MINORITIES IN INDIAN CONSTITUTION Cultural and Educational Right : (Art. 29, 30) Art. 29 - Protection of interests of minorities: i) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. ii) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them. b) Art. 30 - Right of minorities to establish and administer educational Institutions: ii) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. ii) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause) iii) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language. 25
THE RIGHTS OF TRIBALS OR INDIGENOUS PERSONS SYNOPSIS 1. Definition 2. Draft Declaration on the Rights of Indigenous peoples 1.
DEFINITION Indigenous peoples or aboriginal people are those who were living on their lands before settlers came from elsewhere. They are the descendants of those who inhabited a country or a geographical region at the time where peoples of different cultures or ethnic origin arrived, the new arrivals latter becoming dominant through conquest, occupation, settlement or other means. Thus, they are the people who belong to pre-invasion and precolonial societies and they consider themselves distinct from other sections of the societies prevailing in those territories or part of them. Indigenous peoples are also called ‘first peoples’ tribal peoples, aboriginals and autochthons. Indigenous and tribal peoples in many parts of the World do not enjoy their fundamental rights in the State in which they live to the same degree as the rest of the population. Presently, they are nondominant sections of the society because of their poverty and illiteracy. It has been estimated that the number of indigenous person are approximately 300 million and they are spread in 70 countries from Australia to the Artic. More than half of them live in China and India, some 10 million in Myanmar (Burma) and 30 million in South America. While the situation and histories of these peoples vary considerably, their common problems include the loss of degradation of native lands due to the decolonization or development and the threat of involuntary assimilation into the dominant cultures that surround them. They are required to be provided their cultural protection on land and human rights by their respective States. Vienna Declaration recognised the importance of the promotion and protection of the rights of indigenous peoples and states that States should, in accordance with international law, take concerned positive steps to ensure respect for all human rights and fundamental freedoms of indigenous people on the bass of equality and non-discrimination, and recognized the value and diversity of their distinct identities, cultures and social organisation. International action to protect the human rights of the indigenous peoples has been limited. International labour Organisation (ILO) for the first time in 1953 completed a study and led to the adoption of a Convention (No. 107). The Convention was least effective to provide rights to the indigenous peoples and therefore the ILO in 1989 adopted another Convention which is known as the Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries. The Convention came into force on September 5, 1991. The Convention applies to tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations. Article 1, Para (1) (a) 26
The Convention also applies to peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. Article 1, Para (1) (b). The Convention states, inter alia the collective and individual land rights and ownership of natural resources in these people’s traditional habitats. 2.
DRAFT DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES. The Sub-Commission on Prevention of Discrimination and Protection of Minorities in 1982 initiated a study of discrimination against indigenous peoples and established a Working Group on Indigenous Populations. The Working Group was intended to review the policies of Governments and to prepare the draft a universal declaration on the rights of indigenous peoples. The Sub-Commission on Prevention of Discrimination and Protection of Minorities after having considered the Draft Declaration prepared by the Working Group adopted in 1984 the Draft Declaration on the Rights of Indigenous Peoples. Main provisions of the Declaration are as follows : a) Indigenous peoples have the right to the full and effective enjoyment of all human rights and fundamental freedoms recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and International Human Rights Law. (Article 1). b) Indigenous individuals and peoples are free and equal to all other individuals and peoples in dignity and rights, and have the right to be free from any kind of adverse discrimination, in particular that based on their indigenous origin or identity. (Article 2). c) Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. (Article 3). d) Indigenous peoples have the right to maintain and strengthen their distinct political, economic, social and cultural characteristics, as well as their legal systems. (Article 4). e) Every indigenous individual has the right to a nationality. (Article 5). f) Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples. (Article 6). g) Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics. (Article 8). h) Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. (Art. 9) i) Indigenous peoples have the right to special protection and security in periods of armed conflict. (Art. 11) 27
j)
Indigenous peoples have the right to special protection and security in periods of armed conflict. (Art. 11) k) Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. (Art. 12) l) Indigenous peoples have the right to have dignity and diversity of their cultures, traditions, histories and aspirations. (Art. 16) m) Indigenous peoples have the right to enjoy fully all rights established under international labour law and international labour legislation. (Art. 18) n) Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. (Art. 23) o) Indigenous peoples have the right to the conservation, restoration and protection of the total environment and the productive capacity of their lands, territories and resources. (Art. 28) p) Indigenous peoples have the collective right to determine the responsibilities of individuals to their communities. (Art. 34) The Draft Declaration also stated under Art. 37 that States shall take effective and appropriate measures, in consultation with the indigenous peoples concerned, to give full effect to the above rights. The rights recognised in the draft declaration shall be adopted by the States and shall be included in national legislation in such a manner that indigenous peoples can avail themselves of such rights in practice. It was also stated under Art. 40 that the organs of the United Nations and the specialized agencies and other inter-governmental organisations shall contribute to the full realization of the rights provided in this Declaration through the mobilization, inter alia of financial cooperation and technical assistance. Art. 41 provided that the United Nations shall take necessary steps to ensure the implementation of rights stated in the Declaration including the creation of a body at the highest level with special competence in this field and with the direct participation of indigenous peoples. The Working Group completed its work on the Draft Declaration in 1994, however it has been meeting since then to review the human rights development in this regard. In Seventeenth session held in July 1999 it discussed the relationship of indigenous peoples and their relationship to land. The Working Group also considered a report on treaties and other agreements between States and indigenous population. It also debated for the establishment of a permanent forum for indigenous peoples within the United Nations system and the drafting of a Declaration on the rights of indigenous populations. In July 2000, Economic and Social Council established the Permanent Forum on Indigenous Issues as a subsidiary organ, consisting of sixteen members, eight of whom are to be nominated by governments and elected by the Council, and other eight members are to be appointed by the Council President. The Permanent Forum will have the greatest impact on the issues of human rights, environment and development. Indigenous people will be able to make proposals-very radical and meaningful – concerning socioeconomic and sustainable development. They will be able to make concrete proposals based on experience and knowledge and will have an impact on the whole of the United 28
Nations system. As to the declaration on the rights of indigenous populations no substantive progress has been made by the year 2000. D)
REFUGEES Refugees are referred to those persons who leave their States in which they have permanent residents to escape persecution or military action. In order to curb the problem of refugees and to provide international assistance, League of Nations’ High Commissioner for Refugees was appointed in 1921. The problem of refugees assumed un-proportionate dimensions after Hitler’s accession to power in 1933 and his annexation of Austria (1938) and of Chezchoslovakia (1939), and after the World War II which dislocated the civilian population. The United Nations Relief and Rehabilitation Administration (UNRRA) was established on Nov. 9, 1943 to bring aid to war - stricken areas of the World. With the end of UNRRA, the United Nations created the International Refugees Organisation (IRO), the constitution of which was approved by the United Nations’ General Assembly in Dec. 1946. IRO assumed the functions of the UNRRA and was charged with the protection and resettlement of refugees and displaced persons. The IRO was replaced by the Office of the United Nations’ High Commissioner for Refugees (UNHCR) in 1951. The most important international instrument drawn up relating to problems of refugees was the Convention Relating to the Status of Refugees of 1951 which was adopted after considering that the Charter of the United Nations and the Universal Declaration of Human Rights have affirmed the principle that human beings shall enjoy fundamental Rights and freedoms without discrimination. The Convention sets out and codifies the minimum Rights of refugees, such as, the Rights to work, the education and to Social security, freedom of religion and access to courts. It ensures that contracting States shall not expel a refugee lawfully on their territory save on grounds of national security or public order, and that no such refugees shall be expelled or returned in any manner whatsoever to the frontiers of territories where life or freedom would be threatened on account of his race, religion, nationality, membership of a particular Social group or Political opinion. The Protocol relating to the States of Refugees, which extended the scope of the 1951 Convention to the States of Refugees was adopted in 1967. States Parties to the Protocol agreed to treat refugees in the way they treat their own citizens so that equal status may be enjoyed by all refugees. E)
NILABATI BEHARA V. STATE OF ORISSA Nilabati Behera v. State of Orissa, AIR 1993 SC 1960 Ans. International Covenant on Civil and Political Rights 1966 provides for various civil and political rights to every person irrespective of his nationality, caste and creed. It provides right to life, liberty and security of person. The right to life, liberty and security of person have acquired very significant place in various international human rights instruments. In this case one Suman Behera aged about 22 years was taken in police custody in connection with the investigation of an offence of theft 29
and detained at police outpost. Next day, his dead body was found on railway track. There were multiple injuries found on the dead body, leading to the conclusion that his death was unnatural caused by those injuries which were inflicted to him while he was in police custody. The Court awarded Rs. 1,50,000/- as compensation to the mother of Suman Behera. It was observed that an enforceable right to compensation under Art. 9(5) of the International Covenant on Civil and Political Rights is consistent with the concept of enforcement of guaranteed right. According to Verma J. the award of compensation for the infringement of fundamental right guaranteed by the Constitution is justified; (1) where the award of monetary compensation is the only practicable mode of redress available for the infringement made by the State or its servant in the purported exercise of their powers, and (2) the enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Art. 32 and 226 of the Constitution.
1) (2) (3)
ENFORCMENT OF HUMAN RIGHTS
What is the international mechanism available for enforcement of human rights? Explain. Write short notes on ‘Enforcement of Human Rights’ Discuss the enforcement of Human Rights at the International level. How far it is effective?
SYNOPSIS 1. Introduction 2. Enforcement of Civil and Political Rights 3. Constitute of the Human Rights Committee 4. Term 5. Functions of the Human rights Committee 6. Enforcement of Economic, Social and Cultural Rights a) Africa b) Europe c) America d) India 1.
INTRODUCTION For the enforcement of the human rights, number of special bodies have been established in accordance with international conventions dealing with particular aspects of human rights. These various bodies pay their full time and attention to regulate the enforcement of the provisions of all these conventions. It includes Human Rights Committee, the committee on economic, social and cultural rights, the committee on
30
elimination of racial discrimination, the committee on elimination of discrimination against women, the committee against torture and committee on the right of the child. These bodies, in general, supervise the enforcement of the relevant international human rights conventions. They receive information from all reliable sources including reports from States, international and non-governmental organizations and communications made to them by the victim of violations of human rights. These bodies review the information and take appropriate actions to meet the situation. The UNESCO and ILO, in addition have developed their own supervisory systems to consider and deal with reports received from the States, the complaints relating to the application of human rights convention adopted by these organizations and with question of interpretation of human rights instruments. It is overall responsibility of Commission on Human Rights to consider the question of violations of human rights and fundamental freedoms in all parts of the world. In addition it also considers the question of violation of human rights, initiates actions on the situation of human rights in different parts of the world by appointing special working groups. 2.
ENFORCEMENT OF CIVIL AND POLITICAL RIGHTS Art. 28 of the International Covenant on Civil and Political Rights provide for establishment for Human Rights Committee. In accordance with this provision the Human Rights Committee has been established in 1977 to monitor the implementation of the International Covenant on Civil and Political Rights. 3.
CONSTITUTION OF THE HUMAN RIGHTS COMMITTEE The Committee consists of eighteen members who are elected from amongst the nationals of the State Parties to the present Covenant. High moral character and competence in the field of human rights are the essential qualifications for the member of the Committee. They are elected by secret ballots and each State party may nominate two persons of nominating State party. Two third of the State parties shall constitute a quorum for such meetings. 4.
TERM The members of the Committee shall be selected for a term of four years. They shall be eligible for re-election. Each member of the Committee shall make a solemn declaration in open Committee that he will perform its functions impartially and consciously. The Committee shall establish its own rules or procedure. The Committee shall elect its officer for a term of two years. The Secretary General shall provide the necessary facilities for the effective performance of functions of the Committee. 5. i)
FUNCTION OF THE HUMAN RIGHTS COMMITTEE To study reports of the State parties on the measures adopted by them to give effect to the rights recognised in the Covenant and on the progress made in the enjoyment of those rights. 31
ii) iii) iv) v)
To formulate and transmit to the State parties such general comments as it may consider appropriate. To entertain and examine inter-State communication. To establish ad-hoc conciliation commission under Art. 51 of the Covenant. To consider written communication addressed to it under the optional protocol to the international covenant on civil and political rights.
6)
ENFORCEMENT OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS The States Parties to the International Covenant on Economic Social and Cultural Rights submit reports to the Secretary Generals on the measures taken by them and progress made in achieving the rights contained in the Covenant. The Secretary General transmits such report to – (a) the economic and social council for consideration, and to (b) specialized agencies. The reports furnished by the State Parties include particulars of decisions and recommendation on such implementation adopted by the State Parties. The reports are also submitted to Commission of Human Rights for study and general recommendations. The economic and social council is primarily responsible to supervise and regulate the enforcement of various human rights contained in the International Covenant on economic, social and cultural rights. The economic and social council in 1978 had established Working Group in order to facilitate the fulfilment of the responsibility which is thereafter renamed as Committee on economic, social and cultural rights to share the responsibility of the Economic and Social Council for regulation and implementation of these rights. This Committee consists of eight experts who are competent in the field of human rights. They are elected for the term of four years by the council by secret ballot. The reports of the State Parties are discussed by the Committee and the Committee prepares a summary of consideration and submits it to the Economic and Social Council together with its own suggestions and recommendations of general nature. Art. 64 of the Charter of the United Nations authorised the Economic and Social Council to make arrangements to lay down procedures for obtaining reports from the specialized agencies and Government of the member States regarding the implementation of resolution of the Council as well as of General Assembly of Human Rights. Regional systems for the enforcement of Human Rights The inter-Governmental arrangement for the promotion and protection of human rights have been established in East European, American, African regions and India. a) Africa – Organization of African community formed in 1979 wherein African Charter on Human and People’s Rights was drafted and the Charter came in force on 21 st October 1986. The Charter contains provisions dealing with rights and duties and the organs for the protection and promotion of those rights and duties. The State parties of the African Charter are under the obligation to recognise the rights, duties and freedoms contained in the Charter and to adopt legislative or other measures to give effect to them. Each State is required to submit a report on legislative and other measures after every two years on the 32
legislative and other measures taken with a view to giving effect to the rights, duties and freedoms so recognised. Every member State has a duty to promote and ensure the respect of rights and freedom through teaching education and publication so that these rights, duties and freedoms could be understood by the people. There are two bodies established for the promotion and protection of Human and People’s Rights (i) African Commission on Human and People Right and (ii) The Assembly of Heads of State and Government of OAU. The main functions of these two bodies is to study and research on African problems in the field of Human and People’s Rights, to organize seminars and conferences and to encourage national and local institutions concerned with human and people right and to co-operate with other African and International Institution concerned with promotion and protection of Human and People’s Right. b) Europe – The Council of Europe was formed by West European Nations in 1949. They have concluded two treaties for the protection and promotion of human rights and fundamental freedoms – European Convention on Human Rights and The European Social Charter. The Council of Europe established following two institutions for the enforcement of human rights and fundamental freedoms (i) The European Commission of Human Rights, and (ii) European Courts of Human Rights In addition to these two bodies the Committee of Ministers, a governing body of Council of Europe is also empowered to enforce the decisions of European Courts of Human Rights. The European Commission of Human Rights is empowered to decide whether there is violation of human rights and submit its report to the Council of Ministers which decides the measures to be taken for the enforcement of the human rights. The European Commission of Human Rights performs two main functions– (i) to consider any allegations of breach of Convention by a party to the Convention referred to the Commission by any other Party, (ii) to consider petitions on any person, non-Governmental organization or group of individuals claiming to be the victim of violation by one of the contracting parties to the convention. The European Courts of Human Rights has jurisdiction in respect of only those States which have expressly accepted its jurisdiction by making a declaration to this effect. It has optional and advisory jurisdiction. The Court may hear the victim, witness or expert to carry out justice. The decision of the Court is final and binding on the parties. The Committee of Ministers of the Council of Europe are empowered to supervise the carrying out the decision of the Court. c) America The American Convention on Human Rights was adopted by organisation of American States and it came in force in July 1978. The American Convention has adopted following two institutions for the promotion and enforcement of human rights and fundamental freedoms 33
(i) The Inter-America Commission on Human Rights, and (ii) The Inter-America Courts of Human Rights. In addition to the American Convention on Human Rights, there are a number of other Human Rights instruments adopted by Organisation of American States (OAS). The Inter-American Commission on Human Rights carry a function and power to develop an awareness of Human Rights among the peoples of America and to make recommendation to the Governments to take progressive measures in favour of Human Rights. It prepares reports as it consider advisable in the performance of its duties. It has also a power to take action on petition and other communications and submit its annual report to the General Assembly of the Organisation of American States. The Inter-American Court of Human Rights has jurisdiction in respect of all cases concerning the interpretation and application of the provisions of Inter American Convention on Human Rights, that are submitted to it. It has optional jurisdiction only State Parties and Inter-American Commission have a right to submit a case to the Court. The Court submits a report on the work during the previous year to General-Assembly for its consideration. d) India – The Indian Parliament has enacted the Protection of Human Rights Act, 1993 for the constitution of National Human Rights Commission, State Human Rights Commissions in States and Human Rights Courts for greater protection of Human Rights and for matters connected therewith or incidental thereto. (Please see the answer of Human Rights Commission in India.)
1) (2) (3)
HUMAN RIGHTS COMMISSION IN INDIA
Write short note on Powers and Functions on National Human Rights Commission? Write short note on National Human Rights Commission? Discuss in detail the composition, powers and functions of National Human Rights Commission.
SYNOPSIS 1. Introduction 2. Protection of Human Rights Act 3. National Human Rights Commission 4. Powers and Function 5. Functioning of the Commission 6. Recommendation of the Commission 7. State Human Rights Commissions 8. Human Rights Courts in Districts 1.
INTRODUCTION
34
India has shown keen interest in the past in establishing or strengthening a national institution for the promotion and protection of Human Rights before the Third Committee of the General Assembly .It introduced a draft resolution wherein it emphasized the importance of the integrity and independence of such national institutions. In the draft resolution it also requested the Secretary/General of the United Nations to submit a report to the General assembly in two years regarding the functioning of the various kinds of national institutions and their contribution towards implementing human rights instruments. The interest shown by India in the establishment of a national institution for the protection and promotion of human rights was laudable. The interest shown in the international forum implied that it was in favour of establishing such an institution. However, at that time no such institution was established. 2.
PROTECTION OF HUMAN RIGHTS ACT National Commission on Human Rights (NCHR) was set up in India on September 27,1993 when the President of India promulgated an Ordinance. Provisions for the setting up of similar Commissions at State level were also made in the Ordinance. Later, the Lock Sabha passed the Protection of Human Rights Bill on December 18,1993 to replace the Presidential Ordinance. The Bill became an Act after it received the assent of the President on January 8, 1994 which is known as the Protection of Human ‘Rights Act. The purpose of the Act was to provide for the constitution of a National Human Rights Commission, State Human Rights Commissions in State and Human Rights Courts for better protection of human Rights and for matters connected therewith or incidental thereto. Section 2 (d) of the Act defined the expression human rights by stating that human rights means the right relating to life, liberty, equality and dignity of the individuals guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. The Act set up a national Human Rights Commission and the state Human Rights Commission in the States and the Human Rights Courts in the District. 3. NATIONAL HUMAN RIGHTS COMMISSION (NHRC) Chapter II to IV of the Act deals with the National Human Rights Commission. Main provisions relating to it are as follows: Constitution: Chapter II of the Act deals with the Constitution of the National Human Rights Commission. Section 3 of the Act lays down that the Central Government shall constitute a body to be known as the National Human Rights Commission which shall have eight members and will be headed by the former Chief Justice of the Supreme Court. The other members of the Commission shall be a sitting or retired Judge of the Supreme Court, a serving or a retired Chief Justice of the High Court, two prominent persons having knowledge or practical experience in the sphere of human rights and the Chairpersons of the National Commission for Minorities, the Scheduled Castes and scheduled Tribes and Women. The Chairperson and the members of the Commission shall be appointed by the President on the recommendation of a six-members shall hold office for a period of five years, from the date on which they enter upon their office. They 35
shall be eligible for reappointment for another term. A person can serve at the Commission until the age of 70 years. The Commission shall have a secretary-general who will discharge his functions keeping with the powers delegated to him. The Chairperson or any other member of the Commission shall be removed from his office by order of the President on the ground of proved misbehaviour or incapacity after the Supreme Court, on inquiry, reported that the Chairperson or such other member ought on any such ground to be removed. The President may remove from office the Chairperson or any other Members if (a) he is adjudged an insolvent; or (b) he is engaged during his term of office in any paid employment outside the duties of his office;or (c) he has become unfit to continue his office by reason of infirmity of mind or body; or (d) he has been declared by a competent court a person of unsound mind; (e) he has been convicted and sentenced to imprisonment for an offence which in the opinion of the President involves moral turpitude. In addition to the above, the Central Government shall make available to the Commission an officer of the rank of the Secretary to the Government of India who shall be the secretary-general of the Commission, and such police and investigative staff as may be necessary for the efficient performance of the functions of the Commission. The Commission shall have its headquarters in New Delhi and with the permission of the Central Government may establish offices in other places in India. 4.
POWERS AND FUNCTIONS The functions of the Commission are laid down under Section 12 of the Act which are as follows:a The Commission shall inquire suo-motu or on a petition presented to it by a victim or any person on his behalf, into complaint of i) violation of human rights or abatement thereof; or ii) negligence in the prevention of such violation by a public servant. b) The Commission may intervene in any proceeding involving any allegation of violation of human rights pending before a Court with the approval of such Court. c) The Commission shall visit, under intimation to the State Government, where persons are detained or lodged for purposes of treatment, reformation or where persons are detained or lodged for purposes of treatment, reformation or protection to study the living conditions of the inmates and make recommendations thereon. d) The Commission shall review the safeguards provided by our under the Constitution or any law for the time being in force for the protection of human Constitution or any law for the time being in force for the protection of Human Rights and will recommend measures for their effective implementation. e) The Commission shall review the factors, including acts of terrorism, that inhibit exercise of one’s Human Rights as well as the safeguards currently in force and make appropriate recommendations. 36
f)
The Commission shall study the treaties and other international instruments on human rights and make recommendations for their effective implementation. g) The Commission will undertake and promote research in the field of human rights. h) The Commission shall spread human rights literacy among various sections of society and promote awareness of the safeguards available for the protection of those rights through publications, the media, seminars and other available means. i) The Commission shall encourage the efforts of non-governmental organisations and institutions working in the field of human rights. j) The Commission of may perform any other function, as it may consider necessary for the promotion of human rights. k) The Commission shall submit an annual report to the Central Government and to the State Government concerned and may at any time submit special reports on any matter which, in its opinion, is of such urgency or importance that it shall not be deferred till submission of the annual report. The Central Government and the state Government shall cause the annual and special reports of the Commission to be laid before each House of Parliament or the State Legislature respectively along with a memorandum of action taken or proposed to be taken on the recommendations of the Commission and the reasons for non-acceptance of the recommendations, if any. The Commission while inquiring into complaints shall have all the powers of a Civil Court trying a suit under the Code of Civil Procedure of 1908, and in particular in respect of the following matters: (a) Summoning and enforcing the attendance of witnesses and examining them on oath; (b) discovery and production of any document; (c) receiving evidence on affidavits (d) requisitioning any public record or copy thereof from any Court or office; (e) issuing commissions for the examination of witnesses or documents; (f) any other matter which may be prescribed. The Commission shall have power to require any person to furnish information on such points or matters as in the opinion of the Commission may be useful for or relevant to the subject matter of the inquiry and any person so required shall be deemed to be legally bound to furnish such information within the meaning of Section 176 and Section 177 of the Indian Penal Code. The Commission or any other officer, not below the rank of Gazetted Officer, specially authorised in this behalf by the Commission, may enter any building or place where the Commission has reason to believe that any document relating to the subject-matter of the inquiry may be found, and may seize any such document or take extracts or copies therefrom. The Commission may after completing the inquiry recommend to the appropriate Government or authority to take action against the person concerned where the inquiry discloses the violation of human rights. It may also recommend the appropriate Government or authority for grant of necessary interim relief to the victim or his family members. The Commission may approach the Supreme Court or the concerned High Court to pass such directions, orders or writs as that Court may deem necessary. The Commission provides a copy of the inquiry report to the petitioner or his representative. 37
It shall also send a copy of its inquiry report together with its recommendations to the concerned Government or authority shall within a month forward to the Commission its comments on the report including the action taken proposed to be taken. The Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken, by the appropriate authority on the recommendations of the Commission. 5.
FUNCTIONING OF THE COMMISSION In accordance with Section 4 of the Act, the Chairperson and the members of the Commission were appointed by the President on the recommendations of the Committee comprising the Prime Minister as the Chairperson and the Speaker of the Lok Sabha the Home Minister the Leader of the opposition in the Lok Sabha and Rajya Sabha and the Deputy Chairman of the Rajya Sabha as Members. Justice Ranganath Mishra the former Chief Justice of India was appointed the Chairperson who assumed office in the Commission on October 12,1993. Other members were Miss Justice M. Fatima Beevi, Justice Sukhdev Singh Karg and Shri Virendra Dayal. Dr. Justice T.K. Thommen who was appointed as a member of the /Commission could not assume charge on account of illness. In accordance with section 3 (4) of the Act R.V Pillai joined the Commission as its secretary-general and the Chief Executive Officer. Inquiry and Investigation by the Commission The most important function of the Commission is to inquire /investigate the complaints of the human rights violations. In the first meeting of the Commission held on November 1, 1993 it took suo-motu notice of a firing incident by the BSF on a gathering of people at Bijbehana and issued notice to the Government of India seeking a report on the incident. The Commission since then has received a number of complaints. The following figures suggest that there has been a rapid rise in the number of complaints received by the Commission: 1993-94 496 1994-95 6,987 1995-96 10,195 1995-97 20,514 The above figures of complaints include the reports sent by State agencies on custodial deaths and rapes. Complaints made to the Commission related to the custodial death, custodial rape disappearance illegal detention/arrest, false implications, police excesses, failure in taking action, indignity to women, terrorists and Naxalites violations an jail conditions etc. Largest complaints were received from Uttar Pradesh followed by Bihar. The two States together accounted for 54 per cent of the fresh cases received during 1996-97. The Commission does not consider all the complaints received by it. The complaints, which fall under the categories listed in regulation No. 8 of the Commission, are not entertained by the Commission. Under the above Regulation the Commission decided not to entertain cases relating to- (a) events which happened more than one year before making of the complaints; 38
(b) (c) (d) (e)
matters which are subjudice; those which are vague anonymous or pseudonymous; those that are frivolous in nature; matters which are outside the purview of the Commission. Out of 20833 complaints which required consideration during 1996-97, 16823 cases were taken up for consideration and 4010 complaints were processed but were pending consideration at the end of the year. Out of 16823 cases, 8048 cases were disposed of in limini and 2272 cases were disposed of with directions to the appropriate authorities. In respect of 6503 complaints, directions were issued calling for reports 582 cases were concluded after considering the reports received from the concerned authorities or the reports submitted after inquiry by the Investigation Division of the Commission. Thus total of 10848 cases were disposed by during the current year as against 7618 cases disposed of during the current year as against 7618 cases disposed of during the year 1995-96. The number of complaints received by the Commission suggests that a large-scale violation of Human Rights do take place in country. The number also suggests that the people have reposed their trust in the Commission. However, the functioning of the Commission is subject to glaring criticisms. In the past it has not been able to consider all the complaints in hand in the same year. It is desirable that there should not be any delay in the consideration of the complaints. The prompt and active consideration of the complaints would increase the faith in the minds of the people towards the effective working of the Commission. The Commission is aware of this deficiency and therefore with a view to expedite the disposal of the complaints, the ‘Regulations were amended empowering a single member to deal with the complaints instead of a bench of two members. Seeing the number of complaints it is desirable to increase the members of the Commission. The Commission itself is considering the evolution of new procedures to enable it to process the increasing number of complaints. Further tendency of delaying responses by the State authorities also hampers the proper functioning of the Commission. The State authorities should co-operate to the Commission by giving prompt responses to the Commission’s notice so that the disposal of the case may be better. The NHRC investigates the complaints on reports of serious violations by the Commission. Investigation division consists of the sanction strength of 81 persons. The Commission has been careful to select only those persons who have unblemished records in regard to human rights and a true commitment to their protection, particularly in respect of the rights of the most vulnerable and under-privileged. The Commission during the year 1996-97 investigated or monitored 10047 cases (as against 876 cases in 199596). Out of these 296 were investigated by the Commission’s own wing and the remaining 751 were sent to other agencies such as the State police. It is to be noted that the investigation done by the outside agency is not desirable as it is expected that the investigation done by them shall not be impartial especially in those cases were the matter is related to the excesses of the police. The outside agency such as State police is not expected to investigate impartially the human rights violations committed by their 39
fellow policemen and superiors. It is therefore absolutely necessary that the Commission’s own investigating wing is strengthened. 6.
RECOMMENDATIONS OF THE COMMISSION By the end of March 1997, the Commission has submitted four reports to the Government and a number of recommendations were made therein for making the functioning of the Commission more effective and for the promotion and protection of human rights Some of the recommendations are as follows: a) The Commission. Recommended for the amendments to the Protection of Human Rights Act 1993 to ensure more autonomy to the Commission by being empowered to grant relief to the victim or to his family members. b) The Commission recommended for the accession to the convention Against Torture and other Forms of Cruel Inhuman and Degrading Treatment or Punishment adopted by the United Nations in December 1984 which came into force in June 1987. c) The Commission recommended for making reforms and to educate the police. It recommended that serious action be taken on the Second Report of the Police Reforms Commission, 1979 including those suggesting the insulation of the investigative function of the police from political pressure. d) Custodial crimes are particularly heinous and revolting as they reflect betrayal of trust by a public servant against a defenseless person. The Commission. Recommended that the Indian Prison Act of 1894 should be revised. The Commission. Has been preparing a new all India Jail Manual for making reforms in the prison system. e) The Commission. Recommended that in order to make people aware of their human rights there is a need for the movement, which unfortunately is not there in spite of the existence of a large number of NGOs. f) The Commission. Stated that one of its priorities related to human rights is to improve the status of the Scheduled Caste and Scheduled Tribes and of the minorities. The Commission recommended that the nation required vast programme of social regeneration to deal with ancient social wrongs. g) That the dialogue between policy makers the security forces and human rights proponents be sustained for it can contribute greatly to clarity of thought and action in dealing with insurgency and terrorism. h) That the Para-military forces and the Army make it a point to report directly to the Commission. Any instance of death or rape occurring while a person is in their custody. i) That the right to education be enforced if the nation is to prove its seriousness in the efforts to end the child labour. j) That both Doordarshan and AIR should increase their involvement in enhancing human rights awareness. 7)
STATE HUMAN RIGHTS COMMISSIONS 40
The Act also provided under Chapter V for the setting up of the State Human Rights Commission in States which shall consist of a Chairperson who has been a Chief Justice of a High Court; one member who is or has been a judge of a High Court; one member who is or has been a District Judge in that State and two members to be appointed from amongst persons having knowledge of or practical experience in matters relating to human rights. The Chairperson and other members of the Commissions shall be appointed by the Governor on the recommendation of a Committee consisting of the Chief Minister (the Chairperson) and the three members i.e. 1. Speaker of the Legislative Assembly, 2. Minister-in-charge of the Department of Home in that State and 3. the Leader of the opposition in the Legislative Assembly. All the members of the Commission shall hold office for a period of five years and will be eligible for the re-appointment for another term. There shall be a Secretary who shall be the Chief Executive officer of the State Commission and shall exercise such powers and discharge such functions of the State Commission as it may delegate to him. The Headquarter of the State Commission shall be at such place as the State Government may by notification, specify. The State Commission is empowered to perform all those functions, which have been entrusted to the National Human Rights Commission. The State Commission. May inquire into violation of human rights only in respect of matters related to any of the entries enumerated in List II and III in the Seventh Schedule to the Constitution. The Commission is required to submit its annual reports to the State Government and it may submit at any time special reports on any matter, which in its opinion is of such urgency or importance that it should not be deferred till submission of the annual report. The State Government shall submit these reports before each House of State Legislature with a memorandum of action taken or /and the reasons for non-acceptance of the recommendations, if any. The State Human Rights Commissions have been established in West Bengal, Himachal Pradesh, Madhya Pradesh, Assam and Tamil Nadu in that order by March 1997. Later such a Commission has been established in Punjab. Uttar Pradesh has notified the constitution of a Commission. But appointments to the post of Chairperson and Members have not been made. The Government of Jammu and Kashmir has passed legislation to establish a State Human Rights Commission and this has received the assent of the Governor. It is to be noted that certain State Governments have informed the NHRC of their difficulty in establishing the commissions because of financial constraints or because of the non-availability of retired Chief Justice or Justices of the High Court whose presence in essential to the proper composition of the five member Commissions envisaged under the provisions of the Section 21 (2) of the Protection of Human Rights Act of 1993. An amendment therefore is required to be made in the Act to remove the difficulty. The NHRC in its 1996 report has recommended that the State level Commissions be established rapidly. It is desirable and important that if the State Human Rights 41
Commissions are established in different States their work is coordinated with that of the NHRC so that confusion and duplication does not occur. 8)
HUMAN RIGHTS COURTS IN DISTRICTS Chapter VI of the Act comprising of Sections 30 & 31 makes the provisions relating to the creation of Human Rights Courts in each district. The setting up of Human Rights Courts in every district of the country or the speedy trial of offences arising out of violation of human rights is a novel provision of the Act. These Courts may be set up by the State Government, with the concurrence of the Chief Justice of the High Court by notification specifying for each district a Court of Session to be a Human Rights Court. For every Human Rights Court, the State Government shall appoint a Public Prosecutor or an advocate who has been in practice as an advocate for not less than seven years for the purpose of conducting cases in the human Rights Courts. Such a person shall be called a Special Public Prosecutor. Such Courts, have been notified in the State of Andhra Pradesh, Assam, Sikkim, Tamil Nadu & Uttar Pradesh, and have been constituted in Madras and Guwahati. A question arises as to what cases shall be decided by such Courts. The ambiguity remained as to the precise nature of the offences that should be tried in such Courts and other details regarding the conduct of their business in view of the fact that Section 30 of the Protection of Human Rights Act of 1993 does not lay down the jurisdiction and procedures to be followed by such Courts. In India, like many other developing countries much has to be done for the better protection of human rights. Although other social and economic problems like poverty, illiteracy, unemployment, population growth, and law & order have surpassed the importance due to human rights, all efforts are required to be made to make the people aware of their rights. The strong will and determination for the promotion of human dignity and worth will certainly make the human rights movement a great success.
PROTECTION OF HUMAN RIGHTS
The establishment of an independent and impartial institution for protection of human rights in the States was initiated by the UNESCO in the beginning of year 1946. The Secretariat in its memorandum called “Supervision and Enforcement of Human Rights, 1947” had recommended for the establishment of such an institution in every State. Although, in 1966 the General Assembly by Resolution [2200 (C) XXI] dated 16 December, 1966 adopted the proposal for establishing National Commission for protection of human rights which should perform certain functions related to the human rights. In 1993 the World Conference realized the importance of an institution of human rights and appealed to every government to promote and protect the human rights. The Conference also promised to provide all assistance by the United Nations activities to the State who wants to establish one National Commission on human rights aimed at protecting and promoting these rights. Specially, after adoption of the Vienna Declaration 42
and Programme of Actions many countries have established such institutions for protection of human rights. Human Rights Commissions In India India is one of the States which has shown keen interest in establishing a National Commission for the promotion and protection of human rights. India in its draft resolution has requested the Secretary General Assembly in two years’ time with a view to implement protection of human rights programmes. On 27 th September 1993 the National Commission on Human Rights was established in India. Subsequently, A Bill on Protection of Human Rights was introduced in the Lok Sabha which was passed and it became an Act after it received the assent of the President on 8th January, 1994 which is called the Protection of Human Rights Act. The object of this Act was to establish a National Human Rights Commissions at national level and the States Commissions in States and also Human Rights Courts for effective protection of human rights. The National Commission for Protection of Human Rights has been provided with powers and certain functions to deal with the human rights. Though the National Human Rights has been provided with powers and certain functions to deal with the human rights. Though the National Human Rights Commission has its headquarters in New Delhi, but with the permission of the Central Government it may establish in other places in India. As laid down in Chapter III of the Protection of Human Rights Act, 1993, the Commission has been vested with power to conduct investigation pertaining to human rights. Inquiry and investigation are the most important functions of the NHRC. Since 1993, after the enforcement of Protection of Human Rights Act and creation of the NHRC, the Commission has received a bulk of complaints of the human rights violations. These complaints include custodial rape, custodial death, illegal detention, disappearance, police excesses, false implication, indignity to women, Naxalites and terrorists etc.It is awful to mention that largest complaints were received from Uttar Pradesh followed by Bihar. However on 1st November 1993 the Commission took suo motu notice of a firing incident by the Border Security Force on a gathering of people at Bijbehana and issued notice to the Central Government seeking a report on the incident. The NHRC is empowered to entertain all complaints listed in Regulation 8 of the Commission. The number of complaints received by the Commission indicates that a large scale violation of human rights occur in India. The members also indicated that the people of India have developed awareness in respect of the human rights. The performance of the NHRC has invited criticism, because in the past, it has not been able to consider all the complaints received by it in the same year. “Delay defeats justice” the prompt effective consideration is required for better functioning of the NHRC is aware of this problem and therefore with a view to speed-up early disposal of the complaints of the human rights violations, can be disposed off at the earliest. The National Human Rights Commission during the year 1996-97 has investigated 1047 cases, whereas 296 were investigated by the NHRC’s own wing the rest of 751 cases were investigated by other agencies such as the State Police. Since most of the complaint/cases are filed against the State police action there is every probability that the 43
investigation done by the State police shall not be fair or impartial. The outside agency such as State police is not expected to investigate the matters pertaining to the human rights violations committed by their fellow police men and superiors. It is therefore suggested that it is necessary that the National Human Rights Commission should have its own investigating wing to make investigation impartial. The National Human Rights Commission has submitted its reports to the Central Government. The NHRC in its report has recommended many measures for promotion and protection of human rights. The Commission expressed its concern on improper functioning of non-governmental organizations and also emphasized that the right to education be enforced if the nation has to prove its seriousness in the efforts to end the child labour and to promote human right. The Commission should have complete autonomy against interference. To provide clarity of thought in respect of the protection of human rights the dialogue between policy makers, the security forces and the human rights proponents should be established. The para-military forces and Army should be directed to report directly to the NHRC in case of any custodial death and also in case of custodial rape. All India Radio and Doordarshan should increase their participation in bringing required awareness among people pertaining to the protection of human rights.
PROTECTION OF HUMAN RIGHTS AND POLICE
Where there is a right there is a corresponding duty, and in the context of human rights the duty falls upon the States. According to IMMANUEL KANT “The function of the true State is to impose minimum restriction and safeguard the maximum liberties of the people.” The recognition by the United Nations Organisation and by States that all human beings, regardless of nationality, possess rights deserving International recognition and protection, marked a revolution in International Law. The importance of Human rights was realised after the Second World War and with this view of international recognition of women’s right and protection occurred in the “minorities treaties” which guaranteed life, liberty and freedom of religion to all human begins irrespective of their nationality. The first universal and elaborative recognition of human rights and fundamental freedom was recognised in the Charter of the United Nations on 26th June 1945 and its preamble expresses an international commitment of people of the United Nations to reaffirm and confirm faith in human rights. The Charter of the United Nations has reaffirmed the dignity of all human begins and equal rights of men and women. Whereas Member States have pledged themselves to achieve, in cooperation with United Nations, the promotion of universal respect for an observance of human rights and fundamental freedom. A common understanding of human rights and freedom is of the greatest importance for the full realization of this pledge. The General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all people and all nations, with a view that every individual and every organ of society, 44
keeping this Declaration constantly in mind, shall strive by teaching and educating to promote respect of human rights and freedom and by progressive measures, National and International, to secure their universal and effective recognition and observance, both among the people of Member States themselves and among the people of territories under their jurisdiction. The contempt for human rights has resulted in barbarous acts which have outraged the conscience of mankind, and the advent of world in which human begins shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest inspiration of the common people. It is essential, if man is not to be compelled to take recourse as a last resort, to rebellion against tyranny and oppression; that human rights should be protected by the rule of law. However, on 10th December 1948 an attempt was made to describe the individual rights under the Universal Declaration of Human Rights which was adopted by the United Nations’ General Assembly through resolution 217 (iii). The Declaration of Human Rights was accepted as a Common Standard of achievement for all people and all nations. This Declaration indicates the first three stages of a programme designed to achieve an International Bill of Rights, based upon universally binding obligations of States and reinforced by effective administrative machinery. These three stages are1) A declaration defining the various human rights which ought to be respected. 2) A series of binding covenants on the part of the States to respect such rights is defined. 3) Measures and machinery for implementation. The future developments at domestic and the international levels have been influenced. Over the years the human rights have grwon and a plethora or rights has come within its ambit, however, there are some which remain in news almost all the time. These are police inhuman acts, brutality and terrorism. Terrorism- Terrorism can be classified into two categories, i.e. (i) ideological terrorism and (ii) criminal terrorism. The ideological terrorism can be political or religious or can be both whereas criminal terrorism can be commercial terrorism, narco-terrorism and purely criminal terrorism. Thus commercial terrorism intends to take commercial advantage. Narco-terrorism is the way to sustain and establish narcotic traffic. The mafias and terrorist organisation run parallel governments to support their terrorist activities. These groups run extortion rackets. The people indulged in such activities are called terrorists. They do not have any concern or respect for human rights. In fact, they are just wild beasts preying upon the civilized society. Though, the reality is known to them, many human rights groups criticize the police action against the terrorists. Some of them have taken the human rights to such deplorable state that renowned cartoonist Sudhir Dhar had drawn a cartoon exhibiting the police man welcoming a terrorist with a garland, just to keep himself clean of being accused of violating any human rights of the terrorists. 45
Such a ridiculous situation has lowered the morale of the police forces. Even the paramilitary forces engaged in anti-terrorist acts are disheartened. It is true that the police force often exceeds its jurisdiction. Thus, the protectors of human rights sometimes become their major violators. However, violation of human rights by the police takes place partly because of the duty they have to perform and their manner of performance. Right to Life and Liberty are the most fundamental human rights which are widely protected by the Indian Constitution, but these are the main causalities. No doubt there are numerous cases of death in police custody due to physical torture and inhuman treatment by police. Now-a-days, falsely organised police encounters have become the tool to eliminate criminals, especially those whom the police regards as dangerous and whose prosecution and conviction according to law of the land is very difficult because of serious handicaps in obtaining evidence against those criminals. How to rectify such lamenting situation? Firstly, there must be adequate improvement in the living conditions of the police force which are not at all satisfactory. They have enormous workload and usually they have to work 16 hours a day and seven days a week. Therefore, there is hardly any time for recreation. In such a situation, it is simply impossible for the police to be civil and sensitive enough to respect human rights. Unilateral condemnation of the police without analyzing their problems is not proper. The functioning of police for protection of human rights is a complex problem and it has complex problem and it has complex solution. Narco-terrorism is one such complex problem. To deal with it, we need practicable strategy. Firstly we have to pin point and inculcate into every police man a sense of loyalty and sincerity towards protection of human rights by imparting comprehensive education in human rights at every level of Police Personnel. Secondly, we have to consider actively the human rights of the police personnel too. Policemen are expected to perform better in a conducive, flexible system, which would provide them a positive encouragement and incentive for performing their duty. If, we apply these remedial measures, the police brutality can be effectively checked. The laws abiding policemen would develop sensitive conscience for protection of human rights. Thus, it will assist us in achieving the basic object that is standard protection of human rights for every individual everywhere without any discrimination.
HUMAN RIGHTS & THE ROLE OF NGO’S
Qtn. Write short note on Role of Non-Governmental Organization in enforcing Human Rights in India. SYNOPSIS 1. Introduction 2. NGO’s in Various field 3. Important Functions of NGO’s a) Collection of information and monitoring the same b) Legislation 46
c) Education d) Solidarity e) Rendering services in the areas of Social Rights f) Preventing the abuse and securing redress and humanitarian assistance to the victim 4. New Challenge 5. Conclusion 1.
INTRODUCTION The humanitarian concept of protection and care of the people and particularly the under privileged is an important issue of international concern and had been well established in the thinking of the eminent scholars and jurists. However a difficulty had been experienced to express this concern in terms of the legal principles and norms. Law required a certain degree or precision to spell out the Rights and standard of treatment to be also in conformity with the sovereignty Rights of the States. In the context of Human Rights it is considered that this is the matter within the competence of the State. The various international instruments such as the declaration of Human Rights of 1948, the UN Convention of Refugees of 1951, and the Declaration of Territorial Asylum of 1967 have tried to spell out some kind of Rights for the persons who were persecuted. The Convention against torture and other cruel, inhuman or degrading treatment or punishment was adopted by UN in December, 1984. The same came into force in June 1987. The convenant, inter alia, makes it obligatory for the signatory States to take effective legislative, judicial administrative and other measures to prevent the acts of torture or attempts to commit the torture in its territory and to make all such acts or attempts offensive under the criminal law. 2.
NGO’S IN VARIOUS FIELD The concept of Human Rights gained importance after the 2 nd World War when Political and Civil Rights of the people were completely suppressed. At the same time in Western countries development in material resources gave rise to Economic and Social Rights. In the developed countries Political and Civil Rights are considered as Human Rights but in developing countries Cultural, Social and economical Rights are basic Rights which are considered by them as Human Rights. The Human Rights, thus, are classified into Political and Civil on one hand and Social, Cultural and Economic Rights on the other. These Rights under the first group are more in the nature of injunctions against the authorities of the State from encroaching upon the freedom of an individual. The Rights under the second group are in the nature of demands on the State authorities to provide conditions to capacitate the individual to exercise the Rights under the first group. The idea of Human Rights in the form of some basic natural Rights is traced in the natural law theory, which stressed that man is endowed by birth with certain inalienable 47
Rights such as Rights to live, liberty and property. The Universal Declaration of Human Rights adopted by the General Assembly of UN in 1948 an Art. 21 of these Rights. In the initial stages, for achieving the goal the International Human Rights Organisations were founded by League of Nations and United Nations viz. London based Anti- Slavery Society for Human Rights in 1938, the international Committee for Red Cross in 1963, the French League for Human Rights in 1898, the larger number of NonGovernment Organisation (NGO) at national, regional and local level emerged after 1970. Some of the significant NGO’s are People’s Union Civil Liberties (PUCL) in 1974, the People’s Union for Democratic Rights (PUDR) in 1976 and Centre for Democracy (CFD). These organisations have functioned as the conscience of the nation in the field of Human Rights by taking prompt action to investigate the instances of Human Rights by undertaking on the spot studies and publishing the observations. While recognising the Social, Cultural and economical Rights as the fundamental Human Rights, the functions of these development institutions is to be viewed through their perception and action, as these organisations aim at the protection and empowerment of Human Rights and Human Dignity. Justice P. N. Bhagwat has Rightly observed “We can escape from this paradox and break the vicious circle by organising the poor”. The Environment in which the NGO’s are functioning at present is radically different from environment before 1970. For the Human Rights activities the present environment is more complex and offers greater opportunities, which require a higher professionalism to face greater challenges. 3.
IMPORTANT FUNCTIONS OF NGO’S These are great variations in respect of the degree of Political independence that NGO’s exhibit. However all NGO’s believes that a complete independence is a prerequisite for credible Human Rights. Though the NGO’s have been performing a variety of functions in promotions of Human Rights the important functions are as under: a) Collection of information and monitoring the same; b) Legislation; c) Education; d) Solidarity; e) Rendering services in the areas of Social Rights; f) Preventing the abuses and securing redress and humanitarian assistance to the victim. a) Collection of information and monitoring the same: This is a very important function as the behaviour of the State and the other powers. Of exposing and denouncing the Human Rights violations, unless the behaviour is mentioned by Government authorities, will not be held accountable. The significance of the information the intergovernmental bodies would be ineffective in regard to protection of Human Rights. b) Legislation: 48
The NGO’s have played a very important role in drafting at the international levels the standards and interpreting them. NGO’s have also played a vital role in defining the new issues and areas which required Legislation. The NGO’s are often engaged at national levels in drafting Legislative proposals and preparing papers on pending Legislation and testing before Parliamentary committees which includes lobbying for the repeal of unjust enactment. c) Education: This is an important functions of the Human Rights NGO’s. it is at non-formal level and can involve workshops, seminars, consultations, training the trade unionists, farmers and even religious institutions. The NGO’s try to raise consciousness of the society at large by publishing the special bulletins, audio-visuals. d) Solidarity: Human Rights struggles are fought and won largely at national levels by organising and mobilising in slum areas by making by making the people aware of their Rights and training them how to fight for them. Sometimes these struggles are isolated and vulnerable for successful movement of this object the support and the solidarity at regional and international levels are essential. e) Rendering services in the areas of Social Rights: This function is somewhat different from the others discussed above as it involves protection to a lesser degree. It gas been observed that NGO’s are in a better position to the refugees, reaching the victims in disaster and offering relief to them providing skills and training to the underprivileged groups. In such situations, the Government authorities have tried to co-operate with NGO’s for ending the services they should provide but they are unable to do so. f) Preventing the abuses & securing redress & humanitarian assistance to the victims: This function involves combination of various methods from denunciation, legal assistance such as writs of Habeas Corpus, attempts to trace missing persons, visits to detainues and trying to get Human treatment and conditions for the prisoners and moral assistance to their relatives. For achieving this object lobbying at the natural governmental level and international levels is also sometimes necessary. 4.
NEW CHALLENGES In India the Human Rights groups have faced vilification, denunciation and even physical assaults whenever any cause of democratic Rights of the unorganised people were undertaken. Recently NGO’s have faced the wrath in north and northeast part of the country and the groups have come under attacks when cases of ordinary citizens were taken up. NGO’s have taken a consistent approach in condemning the senseless violence indulged in by both the militants and the State authorities. It is the suppression of the fundamental Rights of the common people by the Government authorities. It is the suppression of the fundamental Rights of the common people by the Government authorities on the pretext of anti-terrorist operations and restoration of law and order situations, which have evoked protest from Human Rights groups in India and abroad. 49
The Supreme Court of India has evolved the new techniques for obtaining evidence of violation. It has called upon many orders against Human Rights violators. The NGO’s therefore can play a very important role in enforcement of the orders of the Courts. As discussed above while importing the education the NGO’s can specify and demarcate the law of legal aid. 5.
CONCLUSION: The Chairman of the National Human Rights Commission (NHRC) Mr. Justice Rangnath Misra has rightly observed that NHRC would hold talks with State and sensitize them on the need of Human Rights education. He further observed that a model is being developed by the national Council for Educational Research and Training (NCERT) which could serve as a standard and provide a basis for the action by the States. He remarks that this is not a small job as it involves educating 35 crore people at the school level and sought the suggestion of participants in this regards. It been aptly observed by Dr. Paras Diwan that the role played by the Supreme Court of India is praiseworthy in expanding the ambit or Art. 21 of the Constitution of India on Human Rights to includes Human dignity, Rights to speedy trail, Rights to free legal aid, Rights to prisoner to be treated dignity and humanity, Rights to bell, Rights to compensation for custodial death, Rights to know, Rights to livelihood, Rights to protection, Rights to protection of health and medical care, Rights of children of equal pay for equal work, Rights to Social security, Rights of the workers to participate in management, Rights to shelter, education and healthy environment. There is no doubt that significant progress has taken place in expanding the corpus of the international law on Human Rights while developing the new arenas and protection mechanism and standards of Human Rights. The NGO’s have played a very prominent and positive role in this development and with the vast proliferation of NGO’s, a pressing need is felt for a greater co-operation and co-ordination between these organisation as the same was hitherto largely haphazard and ad hoc. In the areas of information gathering and dissemination, NGO’s are confronting the need to take advantage of the new sophisticated techniques such as computer networks, electronic mail etc. In the areas of management of information there is a related problem that NGO’s confront an unwillingness to share the information with others for the various reasons. This aspect is required to be looked into in detail. Last but not the least is the issue of the sufficient funds being made available for the functioning of NGO’s have an independent funding source which is generally derived from membership. The problem of non-availability of sufficient funds is particularly seen in the NGO’s in the IIIrd World Organisation.
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